We have mostly avoided the most recent kerfuffle about the southern border wall (or fence, take your pick) for a few reasons.
First, the signal-to-noise ratio is pretty bad at the moment, and that usually isn't a good predictor for rational conversation. Second, others are covering the subject much better than we ever could. See Professors Gerald Dickinson, and Ilya Somin, for example. Third, yet other experts are going to be covering this topic at the upcoming ALI-CLE Eminent Domain and Land Valuation Litigation Conference in Palm Springs (Jan 24-26, 2019), and we can get the critical information downloaded to our brain from those right on the front lines. And finally, we've been tied up getting ready for a very important appellate oral argument which the Hawaii Supreme Court is hearing today. Actual work calls!
But we just couldn't resist when this item crashed our Twitter feed.
U.S. Representative Justin Amash (R-MI) introduced a bill (the "Eminent Domain Just Compensation Act") (he should get points for avoiding the cutesy names that they give too much legislation these days). He says the point of the bill is "to ensure private property owners are fairly compensated if the federal government takes their land for border security or enforcement activities."
So we read the bill. (not such a big deal, since it is only 2 pages long.) It appears to propose two things. First, it will withdraw the power of the AG to institute a condemnation for the border wall and delegates it instead to the DHS Secretary. Second, and most critically, it withdraws the quick take power, something we thought was going to be an important piece of any wall-related takings.
A few thoughts:
- We thought that the Fifth Amendment already "ensure[s] private property owners are fairly compensated if the federal government takes their land for border security or enforcement activities" (or anything else). You mean that isn't the way it already works and you need a statute? Say it ain't so, Joe!
- Any thoughts whether withdrawing the quick take power will make it more likely that a condemnor's position on what constitutes just compensation in any particular case will improve? Will this bill mean only that maybe the feds will be more willing to talk turkey and settle quicker if a landowner has the ability to dig his heels in and slow down possession that is supposed to come only after payment of final compensation and title transfer?
- Why only border takings? Why not pipelines, too? Are only borderland farmers and ranchers getting leveraged by quick takes out of their due compensation? Not in our view.
- And finally, the lack of Congressional quick take power in NGA pipeline cases sure hasn't stopped federal judges from uniformly giving pipelines immediate possession anyway in those cases, so what makes anyone think that won't happen here, too?
Let's follow along and see what happens.
H.R. ___ Eminent Domain Just Compensation Act
